58 Fla. 138 | Fla. | 1909
The plaintiffs in error were convicted of murder in the first degree, with a recommenda
Nine errors are assigned, but the fifth, sixth and seventh, all of which are based upon the refusal of certain requested instructions, are not argued, not even being mentioned by the defendants in their brief, hence must be treated as abandoned. The ninth assignment is “For errors apparent by an examination of the record.” This assignment is not argued and presents nothing for consideration. See Douberly v. State, 51 Fla. 41, 40 South. Rep. 675.
The first assignment questions the sufficiency of the evidence to support the verdict, and the second and third assignments are to the effect that the verdict is contrary to the charge of the court and to the law. We pass these assignments temporarily but shall take them up for consideration presently. The fourth assignment is as follows:
“Because the court erred in admitting the testimony of the witness Frank Thomas, Alex Franklin, John Henry Franklin, Mary Jane Franklin and Lucius Bryant, or the testimony of any one of them, as to that particular part of the testimony wherein they testified to hearing alleged dying exclamations of the deceased as follows: ‘Oh, Lord, Turner shot me.’ ”
It will be observed that this assignment is based upon different rulings of the trial court in admitting the testimony of several witnesses as to the “alleged dying exclamations of the deceased as follows: ‘Oh Lord, Turner shot me.’ ” When we turn to the bill of exceptions and, examine the testimony of these several witnesses upon the point in question, we find that objections were interposed
The testimony is set out in the bill of exceptions in narrative form. We find disclosed therein that a negro “festival” was being held on the night the tragedy was enacted which resulted in the death of Henry Franklin and in the defendants being indicted and tried for murder. Frank Thomas was the first witness introduced on behalf of the State and, after having testified that he was acquainted with both the deceased and the three defendants and that he attended such “festival,” further testified: “We heard a shot and Franklin ran inside the gate and said, 'Oh, Lordy, I am shot, that boy Turner Williams shot me.’ Then I ran to him and said 'Who shot you?’
Aleck Franklin testified that the deceased was his father, that he was present on the night that his father came to his death, that he heard only one shot “fired at the frolic” that night, upon which he looked around as quickly as he could and saw his father outside the gate. The witness proceeded to testify, “As soon as he was shot he fell down and then jumped up and hollered and said, -”. Here was promptly interposed a like objection to that offered to the testimony of Frank Thomas, which we copied above and, upon the same being overruled for like reasons, the witness proceeded to complete the sentence, saying that his father exclaimed, “Oh Lordy, Turner Williams shot me,” adding that the deceased “then ran inside of the gate and said, 'Oh Lordy, Turner Williams shot me,’ and then ran to the house and said, 'Oh Lordy, Turner Williams shot me,’ and fell down and died. It was right after the gun fired, about two minutes I reckon, when he said who shot him. It was right after the gun fired.” The defendants moved to strike out that part of the testimony of the witness as to the exclamation or declaration of the deceased as to who shot him, on the grounds that same was not part of the res gestae and was also hearsay testimony. This motion was denied by the court.
Like testimony was given upon the point in question by John Henry Franklin and Mary Jane Franklin, and like objections and like motions were made by the defendants with like rulings by the court. We do not find in the bill
Even if we pass the irregularities which we have pointed out and consider this assignment on its merits, no error .upon the part of the trial court has been made to appear to us either in overruling the objections to such testimony or in refusing to strike it out. Under the rulings of this court, we are clear that such exclamation or declaration of the deceased as to who shot him taken in connection with the attendant circumstances, was properly held to constitute part of the res gestae. See Lambright v. State, 34 Fla., 564, 16 South. Rep. 582, and Marlow v. State, 49 Fla., 7, 38 South. Rep. 653. The facts and circumstances of this case distinguish it from Vickery v. State, 50 Fla., 144, 38 South. Rep. 907. Also see 1 Bishop’s New Crim. Proc. Sec. 1086, and authorities cited in notes.
The eighth assignment is as follows:
“Because the court erred in refusing to charge the jury as follows: ‘I charge you that before you are warranted in finding Turner Williams guilty, you must believe from the evidence beyond a reasonable doubt that he, Turner Williams, fired the fatal shot and that none other than Turner Williams could have shot Franklin, and if you believe that it was reasonable that some other person than Turner Williams could have fired the fatal shot, then you should acquit the defendant, Turner Williams.’ ”
We are of the opinion that no error is made to appear here. It is by no means very happily worded, but is confusing and well calculated to mislead the jury. It is not strenuously insisted upon here and no authorities are cited to us in support of this assignment. We find from an inspection of the general charge that it fully covered the proposition of law embraced in the requested and re
We now take up the first three assignments, which we temporarily passed. Was the evidence adduced sufficient to support tlie verdict? The jury evidently thought so, and the trial judge concurred in their finding by overruling the motion for a new trial and refusing to disturb the verdict. Under such circumstances, this court is disinclined to interfere with the verdict or to reverse the judgment rendered thereon. Its policy ,has been declared in a long line of decisions. See McNish v. State, 47 Fla., 69, 36 South. Rep., 176, and cases there cited. A number of cases to the same effect have been rendered by this court since the opinion in the cited case was handed down. In other words, this court will refuse to disturb a verdict, especially where it has been approved by the trial judge, where there is evidence to support it. The mere fact that the evidence was conflicting will not suffice. Also see the reasoning in Wilson v. Jernigan, 57 Fla. 277, 49 South. Rep. 44, which we shall not repeat here. On the other hand, it was held in Green v. State, 17 Fla. 669, which ruling has been followed in subsequent cases, that “In criminal cases, especially in felony, where the penalty is severe, the court will weigh the evidence, and where, in its opinion, it preponderates so strongly against the verdict that it cannot conclude such verdict was founded upon the evidence on the part of the State, no testimony having been introduced on the part of the defendant, a new trial will be granted.” In the instant case the defendants introduced no testimony. Also see Rushton v. State, Graham v. State, and Stewart v. State, all decided here at the present term.
With these guiding principles before us, we turn now
Frank Thomas, the first witness introduced on behalf of the State, further testified that at the time he heard the shot fired which killed the deceased he was standing at the door with Maurice Williams, one of the defendants, and other named persons; that Maurice Williams did not have any shot gun with him but had a small rifle which was broken; that he did not see Turner Williams there that night; that the deceased was shot with a shot gun. He further testified: “I met Jack Hargrove about a quarter of a mile from the place where the festival was held later that night. He was going to the festival with Willie Williams, who is sometimes called ‘Madison’ Williams, but when they heard that somebody had been killed at the festival they turned back and Jake stopped in his mother’s house a few minutes, while his companion waited outside, and then they both went to Jake’s house.” The witness further testified “that when deceased was shot he was standing about 4 or 6 feet from the gate.”
Aleck Franklin, the second witness introduced on behalf of the State, testified as follows: “Henry Franklin was my daddy and who was shot on the 19th day of December, 1908, at a frolic at Ned Acre’s house in Wakulla county, Florida. He was shot in the left breast. Turner Williams shot him. I did not see him shoot him. I did not see him there that night but I saw Morris (Maurice! there and Capus and their sister Lucy. I heard Maurice say, ‘We are going to get us a nigger’ and I asked Where
After going on to testify as to the exclamation made by the deceased as to who shot him, to which we have previously referred, the witness proceeds: “My daddy, Henry Franklin, & Turner & Morris Williams met in the road that night and had a row. I did not know Morris when I saw him there at first, because he had on Turner’s hat, but later in the evening I saw him again with his own cap on. I first thought it was Turner, but when he spoke I recognized his voice.”
The next witness introduced by the State was John •Henry Franklin, who testified as follows: “I only saw Morris and Capus at the frolic at which my father was killed. I asked Maurice where Turner is at. He said Turner is coming. The frolic was in Wakulla county, Florida, and occurred on the 19th day of December, 1908. I do not know where Morris and Gapus were when the gun fired. I did not see them then. I did not see Turner there at all. There was some shooting at the frolic
Omitting his testimony as to the exclamation made by the deceased, the witness proceeded with his testimony: “There never had been any trouble between Turner and the other defendants and my father that I know of, except about some hogs and that trouble was between my father and their mother and they were having some words about it about two weeks before this and Turner said, ‘Mama, why don’t you go along and let the old man alone. If you don’t you will make me do something to hurt him, damn his old soul;” then he turned to his little sister Pauline and told her to go up to Jenkins Hick’s and buy him a shell, that he wanted to kill a hawk. A short time afterward I saw him walking out in the field back of our barn with his gun. He didn’t say anything, but he would stop as if he looking for somebody. He stayed there a little while and then he went away. He and his mother live on the same plantation that my father lived on, and we were all close neighbors.”
Mary Jane Franklin testified as follows:
“I was the wife of Henry Franklin. He was killed December 19th, 1908, in Wakulla county, Florida, at a frolic at Ned Acree’s house. He was shot in the left breast with a breech-loaded shot gun. He lived only a few minutes after he was shot. I héard him speak after he was shot. I was in the house,' but he was in the yard. I did not see who shot him. I did not see Turner Williams at the frolic at all and Jake Hargrove was not there. I saw Maurice Williams and Capus Williams there. Maurice Williams had a rifle which my son had borrowed from him and gave back to him at the frolic that night. It was broken.” “I was present when the mother of these boys and my husband had a quarrel about some hogs and I heard Turner tell her to go on and let the old man alone
Lucius Bryant simply testified to the effect that he helped to bury the deceased, who met his death at a frolic at Ned Acree’s house December 19th, 1908, in Wakulla county, Florida, being shot in the left breast with a shot gun, the hole being large enough for witness to put his hand in.
James Smith gave tire following testimony:
“I am sheriff of Wakulla county, Florida. I was informed of the killing of Henry Franklin out at Ned Acree’s house sometime during the night. I went to Turner Williams’ house and went in. His mother told me Morris and Capus were in bed, but that Turner had not got in yet. 1 found Morris and Capus lying on a pallet on the floor in front of the door and when I turned the cover down I found Turner in bed with them also. He was covered up head and ears. I found a shot gun there. The barrel looked bright as if it had been recently wiped óut and I also found the rag on the floor that had been used in wiping it out. The rag felt damp. The breech of the gun was cold though and was practically bright and dry. ' I also then made a search for some other gun, but could not find any. Morris told me that Henry Taylor had loaned a gun to them and that it was back of the bed, but I could not find it and have never been able to find it. I also examined the place where Henry Franklin was killed. There was an oak .tree standing about eight feet from the gate. There were tracks by this oak tree and the wadding of a gun with blood on the wadding where Franklin had been shot, outside of the gate. It
Willie Williams, sometimes called Madison Williams, testified as follows:
“I was with Jacob Hargrove down in a neighborhood called ‘The Rocks’ on December 19th, 1908. We went down there early in the day and did not leave there until after night. We started back from the rocks to Ned Acree’s place to go to the frolic, but on the road to the frolic a man came dodging through the bushes and called Jacob to him, calling Jacob ‘Buddie’ and I heard him say, ‘If anybody asks if I was at the frolic, tell them I was at home asleep for I have killed old man Franklin.’ I could not tell who this was or whether he was a black man or a white man. Turner Williams called Jake Hargrove ‘Buddie.’ Also Capus Williams and Maurice Williams called Jacob ‘Buddie.’ ”
The last witness introduced by the State, Anthony Hicks, testified thus: “I had a conversation with Jake Hargrove three days before Franklin was killed. We were walking along the road together. There were some other parties with us, but I do not think they were in hearing distance. I told him that he was the oldest one and the head of the family of the boys and should be a peace-maker and not do anything with old man Franklin, and that he should go to Franklin and make peace, and not hurt him, and he said ‘I won’t do anything of the kind. He has been meddling with the folks and we will make way with him, the damn old son-of-a-bitch.’ ” At the close of his testimony, the State rested its case and the defendant announcing that they would offer no testimony, the court then proceeded to charge the jury. After carefully weighing the evidence, we are irresistibly im
A still more serious question confronts us in regard to the conviction of Turner Williams, the principal. While the evidence adduced against him is by no means as convincing as we would like, and in many respects is unsatisfactory, if he were the only defendant we would hesitate long before we would disturb the verdict. Having reached the conclusion, however, that the jury must have been influenced by considerations outside the evidence in finding their verdict against his co-defendants, we cannot get our consent to let the verdict stand as to him. We feel that the ends of justice will be better met by reversing the judgment as to all three of the defendants and remanding the case for a new trial. In view of
Judgment reversed.